(Illustration) Sick PayBy Kristina M Launey

The Labor Commissioner has issued a new and updated set of FAQs interpreting California’s new Paid Sick Leave Law (AB 1522 of 2014).

If you’ve been following along, you know that after passage of the new law last year, the Labor Commissioner issued a template Poster and Wage Theft Prevention Notice for employers to use and post, as well as a first set of FAQs.

The new FAQs obligate employers to inform existing employees of the new sick pay law and changes in policy via the Wage Theft Notice, provide guidance regarding when such notice must be given to existing employees, and provide guidance regarding sick leave eligibility for seasonal or break-in-service employees, as well as part-time and alternative work schedule employees.

Wage Theft Prevention Notices: Employees hired before January 1, 2015 must receive a new Notice that contains the new information regarding paid sick time under amended Labor Code section 2810.5, even if there is no change in employer policy.

Employers must give all employees (not just those hired after January 1, 2015) a new Wage Theft Prevention Notice, announcing any change to paid sick leave, within seven days of the actual change. Although the FAQs are silent on this point, note that Labor Code section 2810.5,  which requires Wage Theft Prevention Notices, applies only to non-exempt employees.

The “date of actual change” would depend on when the employer either establishes a paid sick program under the paid sick leave law or changes an existing paid leave program to comply with this law, but would be no later than July 1, 2015. Thus, the last date to provide notice of changes would be no later than July 8, 2015 (seven days after the July 1 sick leave entitlement effective date).

Employers who do not want to issue new Wage Theft Prevention Notices to all current employees may instead inform those employees of the change to paid sick leave by using an alternative method authorized by Labor Code section 2810.5(b)(1) or (b)(2) (e.g., giving notice of change in a pay stub or itemized wage statement). Employers who choose this route should take care to follow the requirements of these alternatives and keep records of having provided those employees with the notice.

Even employers whose existing policy satisfies the minimum requirements of the law must still provide notice—via the new Wage Theft Prevention Notice or an alternative method—regarding the new paid sick leave law. The notice must contain information about the new paid sick leave law and how the employer intends to meet its requirements for the particular employee. For example, a timely writing provided to each employee that refers to or summarizes the existing policy and contains the points of information specified in the revised Wage Theft Prevention Notice would comply with the individual notice requirement.

Leave Entitlement to Seasonal/Break-in-Service Employees

There was some confusion about how to deal with employees who work separate times for the same employer within the same 12-month period (e.g., seasonal employees). Because the employee returns to work with the employer within a year, the paid sick time law dictates that the employer restore the employee’s unused accrued sick leave.

However, the DLSE has clarified that the employer need not allow the employee to use any paid sick leave until the employee has completed a total of 90 days of work for the employer (including prior work periods, not just the current work period). For example, if the employee had worked 60 days during an initial work period, then the employee would be entitled to begin using paid sick leave after completing an additional 30 days of employment in a later work period within the same 12- month period.

Sick Pay Owed to Employees with Part-Time/Alternative Work Schedules

Alternative Work Schedules: An employee who works an alternative work schedule and therefore works more than eight hours in a workday (for example, four 10-hour days) is entitled to decide how much paid sick leave time to take, subject to the employer’s ability to set a two-hour minimum. Therefore, a 4/10 employee who has ten hours of available sick time can use all ten hours if a full sick day is taken, or may opt to use less sick time.  If a 4/10 employee is sick for three days and has 24 hours of available sick leave, then the employer would have to pay out the 24 hours. If the 4/10 employee had 30 hours available, then the employee would be entitled to be paid for 30 hours.

The FAQs also appear to indicate that a 4/10 employee is entitled to accrue or receive a lump grant of 30 hours, instead of 24 hours, on the basis that “three days” for a 4/10 employee is 30 hours as opposed to 24.  However, the FAQs are not entirely clear on this point, and in fact reach the opposite conclusion for part-time employees (see below).  Therefore, this may still be an open issue.

Part-Time:  The three-day or 24-hour cap works to the part-time employee’s advantage. An employee who works six hours per day and who has 24 hours of paid sick leave available does not exhaust the annual sick leave entitlement by taking three paid sick days, because the employee has used only 18 hours of the 24-hour entitlement, leaving six hours of sick time remaining. In this context, the Labor Commissioner is interpreting “three days” to mean 24 hours (based on an eight-hour workday). Thus, employers must allow all employees to use up to 24 hours of paid sick time per year, even if that results in the employee taking off more than three days of work.